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COMMONWEALTH v. DESANTIS (03/31/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 31, 1975.

COMMONWEALTH
v.
DESANTIS, APPELLANT

Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1972, No. 56, in case of Commonwealth of Pennsylvania v. Thomas DeSantis.

COUNSEL

James N. Falcon, for appellant.

Robert F. Hawk, First Assistant District Attorney, and John H. Brydon, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Per Curiam

[ 234 Pa. Super. Page 67]

This is an appeal from the dismissal of appellant's petition under the Post Conviction Hearing Act (PCHA).*fn1 The only issue raised concerns the validity of

[ 234 Pa. Super. Page 68]

    the search warrant under which evidence used against appellant was seized. This issue was raised in post-trial motions, and was decided against appellant. There was no direct appeal from the judgment of sentence, although appellant concedes that he was advised not only of his right to appeal, but that he should appeal. This informed failure to appeal an issue decided below renders the claim raised here "finally litigated," PCHA § 4(a)(1), 19 P.S. § 1180-4(a)(1), and appellant is not eligible for relief under the Act. PCHA § 3(d), 19 P.S. § 1180-3(d).

Order affirmed.

Disposition

Order affirmed.


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